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In re J.B.

Court of Appeals of Ohio, Ninth District, Summit

January 24, 2018

IN RE: J.B.

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN15-11-774

          SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          ALEXANDRA HULL, Attorney at Law, for Appellant.

          HOLLY FARAH, Guardian ad Litem.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, JUDGE.

         {¶1} Appellants, Mother and Father, appeal the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights and awarded permanent custody of their child, J.B., to appellee Summit County Children Services Board ("CSB"). This Court reverses and remands.

         I.

         {¶2} Mother and Father are the unmarried biological parents of J.B. (d.o.b. 10/10/15). Father was incarcerated and serving a nine-year prison sentence when the child was born at 32 weeks gestation. Due to the child's prematurity, Mother's cognitive delays which hindered her ability to care for the baby without prompting and intervention, and Mother's lack of family support in the area, CSB filed a complaint on the day J.B. was scheduled to be released from the hospital, alleging that the child was dependent. The juvenile court granted the agency an emergency order of temporary custody. At the adjudicatory hearing, Mother stipulated that J.B. was a dependent child. The agency then presented evidence as to the child's dependency relative to Father. After the initial dispositional hearing, the juvenile court placed the child in the temporary custody of CSB, and adopted the agency's case plan as the order of the court.

         {¶3} Over the course of the next several months, Mother was compliant with her case plan objectives. However, she remained unable to implement the information she received during intensive parenting classes to demonstrate an ability to safely and adequately care for the child. Approximately ten-and-a-half months after filing its complaint, CSB filed a motion for permanent custody. In support of the first-prong finding necessary for an award of permanent custody, the agency alleged that (1) the child could not be placed with either parent within a reasonable time or should not be placed with his parents pursuant to R.C. 2151.414(B)(1)(a), and (2) Father had abandoned the child pursuant to R.C. 2151.414(B)(1)(b). As the facts did not support such an allegation, CSB did not allege that J.B. had been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period pursuant to R.C. 2151.414(B)(1)(d). The agency further alleged that an award of permanent custody was in the child's best interest. Mother filed a motion for legal custody, or in the alternative, for a six-month extension of temporary custody. The juvenile court scheduled a permanent custody hearing for a date three-and-a-half months later; however, the hearing did not take place.

         {¶4} Three days after the permanent custody hearing was to have taken place, the juvenile court, without explanation, issued an order rescheduling the permanent custody hearing for a date two-and-a-half months later. One month after the latest scheduling order, the juvenile court held a file review and issued an order continuing the permanent custody hearing for another two-and-a-half months on the court's own motion. The next day, CSB filed another motion for permanent custody, notwithstanding the fact that its original motion remained pending. The agency neither withdrew its original motion, nor requested leave to file a second motion. Nor did the agency caption its second motion as an amended or renewed motion.[1]Moreover, there is no record of the trial court having ruled on the first motion.

         {¶5} In its second motion for permanent custody, CSB attempted to combine the first-prong provisions of R.C. 2151.414(B)(1)(a), (b), and (d), muddling the statutory language in the process. Specifically, the agency alleged:

The child is not abandoned as to his mother, he is not orphaned, and he has been in the temporary custody of one or more public children service agencies or private child placing agencies for twelve (12) or more months out of a consecutive twenty-two (22) month period or previously in the temporary custody of an equivalent agency in another state, but cannot be placed with either parent within a reasonable time or should not be placed with his/her parents.

         The only time CSB expressly alleged that Father had abandoned the child was in reference to an R.C. 2151.414(E) factor, relevant to first-prong grounds that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent pursuant to R.C. 2151.414(B)(1)(a). Moreover, as to the (B)(1)(a) prong, the agency disregarded the statutory language and changed the conjunction from "and" to "but" as quoted above.

         {¶6} One week before the permanent custody hearing was ultimately held, Father filed a motion for legal custody to a third party, specifically a "close family friend" who lived in California. At the permanent custody hearing, the juvenile court considered CSB's second motion for permanent custody, Mother's motion for legal custody, and the parents' joint oral motions for a six-month extension of temporary custody. At the conclusion of the hearing, the visiting judge issued a judgment entry granting CSB's motion for permanent custody and terminating Mother's and Father's parental rights to J.B.[2] Mother and Father filed ...


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